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REPORT OF THE MINORITY 



COMMITTEE OJV MILITARY AFFAIRS, 



THE PETITION OF 



THE LEGAL REPRESENTATIVES OF ANTONIO PACHECO, 



COMPENSATION FOR A SLAVE. 



MINOEITY REPORT. 



FEBRUiSRY 9, 1848. 



Mr. Dickey submitted the following, as the views of the minority 
of the Committee on Military Affairs, upon the petition of the 
legal representatives of Antonio Pacheco: 

Upon the petition of Antonio Pacheco'' s heirs a minority of the 
Committee on Military Affairs ask leave to report: 

That the facts in this case are distinctly set forth in the report of 
the majority, viz: "That Pacheco was the owner of a negro slave 
named Lewis, who was hired by an officer of the army, duly au- 
thorized, from his owner, as an interpreter and guide to the defeat- 
ed command of Major Dade; that he was one of the few survivors 
of the disastrous defeat of that command, and remained either vol- 
untarily or as a captive amongst the hostile Indians until the spring 
of 1837, when he accompanied Jumper, a Seminole chief, to one of 
our military posts in Florida; that he was then claimed by his 
owner, and the military commander, in whose control he was, re- 
fused to deliver him to his owner, and ordered that he be sent with 
the Indians to the west; because he deemed his transportation proper 
inasmuch as he was considered capable of exercising an injurious 
influence over the Indians; and thus, in pursuance of this order, he 
was transported to the west, and his owner thereby deprived of his 
value." 

The undersigned being unable to coincide with the majority of 
said committee, have been induced, from the importance of the 
questions involved, to place before the House some of the reasons 
which have led them to a satisfactory conclusion that the petition- 
ers are not entitled to relief. Before entering upon the principal 
question involved in the consideration of this claim, the undersigned 
would remark, that in no aspect of the case can they regard it as 
valid. Admitting, for the sake of the argument, that the slave was 
property in every sense of that term, it appears very clearly to the 
minds of the undersigned, that compensation cannot be granted 
according to well known and established usages which have con- 
trolled this government from its earliest history. 

The military officers of government are its special agents, limited 
irv their sphere of action, but authorized to bind the government so 



4 Rep. No. 187. 

far as their legitimate powers extend, and no farther. Thus a milita- 
ry officer may undoubtedly bind his government, so far as may be ne- 
cessary to provide the men under his command with the ordinary ra- 
tions to sustain them, if not provided by the other agents of govern- 
ment; but if they be furnished by the government, and the officer pur- 
chases, upon the public credit, wines, or chocolate, or other luxu- 
ries, such contract places the government under no moral or legal 
obligation to pay for them. The rule in regard to military officers 
is nearly the same as that in civil life. While the agent acts strict- 
ly within the limits of his autboruty he binds his principal, but 
when he transcends his authority his acts become his own, for 
which he alone is liable. These principles have been so often de- 
cided that it would seem useless to quote precedents. 

And now, admitting this man Lewis to have been the property of 
the petitioner, had the officer who sent him west of the Mississippi 
legal authority to bind his government by such act? Had the same 
officer taken the horse or the ox of the petitioner and sent him west 
of the Mississippi, in the same manner, would the government have 
been bound to pay for him] Certainly not. The offirpr, if neces- 
sary to transport his baggage or provisions, would have possess- 
ed authority to hire, or even to purchase, or to impress into the 
service horses or oxen for that purpose. But he had no authority 
to hire, purchase, or impress a horse or ox to send out of the coun- 
try. Such act would have rendered the officer liable, but not the 
government. 

Taking the negro, had he been property, for the purpose of 
sending him west of the Mississippi would not have constituted a 
" taking for the public use.''"' He cannot be regarded as used by 
the public while he is pursuing his own happiness in the western 
country. Not being taken for public use, the taking was the act 
of the officer, for which the gQvernment is not responsible under 
the practice which has been followed since our existence as a 
nation. 

But questions of the most grave importance seem legitimately 
involved in this case. The character of slavery and the constitu- 
tional relation which the federal government and the people of the 
free States hold to that institution, must necessarily be determined 
before we can arrive at a satisfactory conclusion upon the case 
presented. 

1st. As to the character of slavery. In the earlier ages, many 
nations of the earth regarded war as the only honorable employ- 
ment of man. When prisoners were captured, it was supposed that 
the victor had the legitimate right to deprive them of life, or to 
save the life of the prisoner and hold him as a slave. Thus, slavery 
is regarded by most writers as one of the resulting consequences of 
war. The prisoners captured were held by physical force, and 
whenever they made their escape they became free. To eflfect 
their escape, they might use any means within their power, pro- 
vided they did not injure innocent persons. 

The practice of taking prisoners of war continues to this day. 



Rep. No. 187. S 

but the holding of prisoners as slaves has long since ceased among 
civilized nations, although it has but recently been abandoned by 
the semi-barbarians of Algiers and Tunis. 

The practice of seizing upon the unoffending people of Africa, 
. and bringing them to the American continent and holding them as 
slaves, followed the abrogation of that of holding prisoners of war 
in perpetual servltudej and, although the importation of slaves to 
these Slates has been interdicted by law since the year 1808, it is 
still openly continued by one of the governments on the American 
continent, and clandestinely practised by citizens of other govern- 
ments. 

The inhabitants of Africa are seized in violation of the dictates 
of humanity and of the natural rights of man. They are torn 
from their native land by physical force, and, while on board the 
slave-ships, are held in subjection by chains and fetters. It is 
perfectly clear that they had at all times the most indisputable 
right to release themselves from bondage by any means which God 
and nature had placed within their power. That right descended 
to their offspring, and still continues. Th'ey owe no alleo-iance 
whatever to our government; it has never extended to th^m its 
protection, and can demand from them, by no principle of reason 
or justice, any support. Thus it is said, with great force, that 
slavery is a state of war between the slave and those* who oppress 
them. All his feelings are opposed to the laws and the govern- 
ment which holds him in subjection. Thus, the slave "Lewis," 
whose master now claims at the hands of Congress a compensation 
for his body, was held in servitude by the local laws of Florida, 
which authorized his master to chastise him into obedience to his 
own w-ill. To his master, nor to the government of Florida, nor 
to that of the United States, was he under any moral obligations 
of friendship or obedience. He had the most clear and indispu- 
table moral right to relieve himself from servitude at the earliest 
practicable moment. When he joined the enemy, after Dade's de- 
feat, his master, the government, and the laws of Florida lost their 
control over him. He then became free. From that time, he acted 
in concert with our enemies, and was one of them. Had he been 
slain in battle, no one would have supposed the United States 
liable to the master. When he submitted to our arms, together 
with his Indian allies, he did so as an enemy, and thereby became 
a "prisoner of war," in the same manner and entitled to the same 
rights and privileges to which his fellow prisoners were entitled. 
The officer in command was fully authorized to extend to him the 
same terms of capitulation which he extended to others. Those 
terrns had been prescribed and made known both to him and to the 
Indians. Those propositions were, that they should emigrate west 
of the Mississippi, In these terms there was no exceptions. See 
Doc. 225, 3d session 25th Congress. 

Under these stipulations, and the pledged faith of the govern- 
ment, he submitted as a prisoner of war to an officer of the United 
States. It is said that the petitioner then claimed him. What 
claim had he to this prisoner? The answer is, that he had no more 



6 Rep. No. 187. 

claim to the negro than the negro would have had to the master, 
had he been taken prisoner by the enemy. Having been /ree, 
there was no law of Florida, or of the federal government, by 
which he could have been re-enslaved. There is no practice or 
usage of civilized nations at this day which could justify the re- 
enslaving of this man Lewis. It would have reflected dishonor 
upon the government to have violated its faith by enslaving those 
prisoners who had come in under a promise of being transported 
west of the Mississippi. The officer to whom he surrendered was 
not authorized by any law to decide upon the fact of his being a 
slave. There was no mark by which he could ascertain whether 
the prisoner had been a slave or not. The question of his right to 
liberty could not be legally passed upon or decided by a military 
officer in the service of the United States. That would have been 
a judicial question, could it have been raised, which no mere mili- 
tary officer of this government was authorized to determine. 

If the petitioner had any legal right to the custody of the man 
Lewis, [which is by no means admitted,] it was his duty to have 
enforced it by judicial process, by which the negro could have been 
brought before competent authority, and the legal claim of the 
petitioner could have been determined. But the undersigned deny 
that the petitioner could stand by and see the negro carried beyond 
the Mississippi, and then turn round, and as a consequence of his 
own neglect, call on the government to pay him for such servant. 
Again, the negro was neither killed nor maimed, but was dis- 
charged out of custody of the officer, and the petitioner may now 
enforce his claim to him if he has any. There is the slave; if the 
petitioner has had any legal right to him since he was taken, that 
right remains unimpaired, and the petitioner is at full liberty to 
enforce it judicially; but while he thus sleeps upon his rights, the 
undersigned are unable to discover any good cause why the govern- 
ment should award him a compensation for said slave. These 
objections present themselves to the undersigned as insuperable at 
the very tlireshold of the case. 

Beside these difficulties, however, there are other considerations 
which address themselves with great solemnity to the judgment of 
the committee. 

The legislative branch of this government are now called upon 
to recognize slaves as 'property under the constitution of the United 
States, and the undersigned have therefore examined this part of 
the case with some care. 

It is undoubtedly true that during the earlier ages, slaves were 
regarded by many nations as a species of property. Indeed, we 
find that as late as 3749, Lord Chancellor Hardwick decided that 
trover lay for a West India slave, before the courts of Great Brit- 
ain. But such was the progress of public opinion, that in 1772 
Lord Mansfield, with the unanimous concurrence of all the judges 
of the king's bench, decided, in the celebrated case of Somerset, 
(see 20 State Trials,) that a slave brought upon British soil became 
ipso facto free. In his closing remarks, he said " The state of 
slavery is of such a nature that it is incapable of being introduced 



Rep. No. 187. ^ 7 

011 any reasons moral or political^ hut only hy positive law. It is 
so odious that nothing can he suffered to support it hut positive 
law.^^ From the time of Lord Hardwick's decision to that of Lord 
Mansfield, no act of Parliament had changedthe English law in 
any respect whatever, and the revolution in the judicial branch of 
government resulted entirely from the force of public sentiment. 
Yet slaves were at that time held in all the colonies which subse- 
quently formed the States of this Union at the time of adopting the 
constitution. But the patriots of that day were inspired with the 
great and important truths relating to the rights of man. The con- 
vention which put forth our declaration of independence on the 4th 
July, 1776, proclaimed those great principles which challenged the 
admiration of the world. They declared it to be a " self-evident 
truth," that men were born free and equal, with certain inalienable 
rights, among which were life, liberty, and the pursuit of happiness; 
that to protect tho^e rights governments are formed among men 
deriving their just powers from the consent of the governed." No 
form of language could more forcibly deny that man can be made 
property, than this declaration of the sages of American freedom. 

In 1787 the convention met to frame our federal constitution; 
and it is important to understand the light in which they viewed 
this question. 

Mr, Madison in his papers informs us that on 

"Wednesday, August 22d, the convention proceeded to consider 
the report of the Committee of Detail, in relation to duties on ex- 
ports, a capitation tax and a navigation act. The fourth section 
reported was as follows: 

" ' No tax or duty shall be laid by the legislature on articles ex- 
ported from any State, nor on tie migration nor importation of 
such persons as the several States shall think proper to admit; nor 
shall such migration nor importation be prohibited.' 

" Mr. Gerry thought we laad nothing to d© with the conduct of 
the States as to slavery, hut we ought to he careful not to give any 
sanction. 

"Mr. Sherman, was opposed to any tax on slaves imported, as 
making the matter worse, hecause it implied they loere property. 

" The whole subject was again committed to a committee of 
eleven, which, August 24th, reported as follows, concerning the 
4th section: 

" ' Strike out so much of the 4th section as was referred to the 
committee, and insert, 'the migration or importation of such per- 
sons as the several States now existing shall think proper to admit, 
shall not be prohibited by the legislature prior- to the year 1800, 
nut a tax may be imposed on such migration or importation, at a 
rate not exceeding the average of the duties laid on imports.^ 

" The next day the report was taken up. and amended by substi- 
tuting 1808 for 1800, and the .first part was then adopted. 

" Mr. Gorham thought Mr. Sherman should consider the duty 
not as implying that slaves are property, but as a discouragement 
to the importation of them. 



8 . Rep. No. 187. 

The discussion, it will be observed, turned upon the peculiar 
phraseology of the second part of the report, which, in classifying 
slaves with merchandise, seemed to imply that they were property. 
No one expressed a "desire that such an idea should be embodied in 
the constitution; on the contrary, there was a manifest desire on 
the part of the members of the convention to explain the phrase- 
ology as to exclude the construction given to it by Mr. Sherman. j 
Mr. Madison, it seems, agreed with that gentleman. He thus re- \ 
ports himself: 

" Mr. Madison thought it wrong to admit in the constitution the 
idea that there could he property in man. 

"Col. Mason — (in answer to Mr. Gouverneur Morris) — the pro- 
Tision as it now stands was necessary for the case of convicts, <in 
order to prevent the introduction of them. 

"Still, the convention was not satisfied, and it was finally agreed, 
nem. con., to have the clause read 

"'But a tax or duty may be imposed on such importation, not 
exceeding ten dollarsybr each person.'' 

"And then the second part, as amended, was agreed to." 

And thus it stands to this day. 

This is one of the most important facts on record. It demon- 
states, beyond all doubt, the settled purpose of the federal conven- 
tion carefully to exclude from the constitution they were framing 
the idea that there could be property in man; and that the term 
^'^ persons^'' was used when slaves were referred to, with the inten- 
tion that, so far as the constitution was concerned, they were 
always to be regarde;'? as persons, and not as piroperty. Mr. Sher- 
man was opposed to the clause, "as acknowledging men to be 
PROPERTY." Mr. Madison was also opposed to it, because he 
" thought it WRONG TO ADMIT IN THE CONSTITUTION 
THE IDEA THAT THERE COULD BE PROPERTY IN 
MAN." 

And the clause was so amended to exclude in express terms the 
idea that there could be property in man. 

These views appear to have fully accorded with the public senti- 
ment of that period. In every instance in which reference to glaves 
is made in the constitution, they are termed persons. Thus, in 
fixing the ratio of representation, it provides that "the number 
shall be ascertained by adding to the whole number of free per- 
sons, including those bound to service for a term of years, and 
excluding Indians not taxed, three-fifths of all other persons.'" It 
is clear that the framers not only regarded slaves as persons, but 
they were spoken of as other persons — thus placing them upon the 
same general basis as freemen. In the 9th section of the first ar- 
ticle, the constitution provides that "the migration or importation 
of such persons as any of the States shall think proper to admit, 
shall not be prohibited until the year 1808," &c. Here, again, the 
language is carefully used to distinguish slaves from property. 
Again, in the second section of the third article, the constitution 
provides : " No person held to service or labor in one State under 



Rep. No. 187. 9 

the laws thereof, and escaping into another, shall, by any law or 
regulation thereof, be discharged from such service or labor." 
Thus, in every instance in which the constitution refers to slaves, 
they are designated as persons^ contradistinguishing them from 
property. We are not only informed that the framers of the con- 
stitution regarded it as wrong to admit in the constitution "that 
there could be property in man," but they carefuHy employed such 
language, in framing that instrument, as to exclude such an idea. 
The undersigned regard this subject as separated from all uncer- 
tainty or doubt; so that any man who carefully examines it must 
be convinced that to regard slaves as property, under our federal 
constitution, would be to pervert the language of the constitution, 
and to defeat the recotded intention of those who framed it. 

The undersigned are 'further confirmed in this conclusion by the 
decision of this point by the highest judicial authority known to 
the constitution. In the case of Groves vs. Slaughter and others, 
(15 Peters's Reports, 449,) this question came distinctly before the 
Supreme Court of the United States. The constitution of Missis- 
sippi had prohibited the introduction of slaves into that State after 
a certain day. Slaves were taken there and sold on a credit after 
the time allowed by the constitution of that State. Suit was com- 
menced on the note given, in consideration of the slaves. The 
defence was, that the contract was illegal and void under the 
constitution of that State, which prohibited the sale therein of 
slaves from without the State. The reply to this was, that slaves 
were property^ and therefore the State of Mississippi had no power 
to prohibit their introduction into the State, as the power to regu- 
late commerce between the States belonged only to Congress. In 
deciding the law. Judge McLean said : " By the laws of certain 
States, slaves are treated as property; and the constitution of Mis- 
sissippi prohibits their being brought into that State by citizens of 
other States for sale or as merchajidise. Merchandise is a compre- 
hensive term, and may include every article of traffic, whether 
foreign or domestic, which is properly embraced by a commercial 
regulation. But if slaves are considered in some of the States as 
merchandise, that cannot divest them of the leading and controlling 
quality of persons, by which they are designated in the constitu- 
tion. The character of the property is given them by the local 
law. This law is respected, and all rights under it are protected 
by the federal authorities; but the constitution acts upon slaves as 
persons, and not as property." 

If slaves be property , it follows that Congress may regulate the 
interstate slave trade. They may prohibit the transportation of 
slaves from one State to another; or they may authorize the estab- 
lishment of slave markets in each State of the Union, under such 
regulations as may be deemed reasonable. If slaves, under our 
constitution, be regarded as property, then, indeed, no individual 
State has power to prohibit slavery within its jurisdiction. The 
constitution of several States declare tnat there shall be neither 
slavery nor involuntary servitude within such State. But if slaves 
be regarded as property under our federal compact, then no 



10 Rep. No. 187. 

State of the Union has power to consecrate its soil to freedom. 
No State can, under the federal constitution, exclude horses or 
property of any kind from being brought into it and sold. If, 
therefore, slaves be property, they may be transported to New 
York or Ntw England, and held there, and sold like other prop- 
erty. But those who regard slaves as property, will hardly con- 
tend for such a right. 

The undersigned are conscious that doubts on this subject have 
long existed in the minds of some statesmen and jurists who have 
been born and educated in States where slaves are held to be 
property by the force of the local laws. Being accustomed to 
regard them as property, they draw no distinction between the 
laws of the slave States and those of the federal government. 
Persons thus educated in the slave States, coming into the office 
of President, or into either of the executive departments, or into 
either house of Congress, are likely to bring with them the views 
imbibed in such States. Thus we find that in some instances the 
President of the United States and other officers of the government 
have at times, without examination, regarded slaves as property, 
and, in some instances, have paid the public funds for such slaves, 
not only without authority of law, but in opposition to the spirit and 
the letter of the federal compact. The same officers, after having 
their attention called particularly to the subject, have seen their 
error, changed their practice, and refused to regard slaves as prop- 
erty. So, alro, in some of our treaties, slaves are referred to in 
connexion with other property. Thus our treaty with Great Brit- 
ain, of 1814, speaks of " negroes or other property;" so too in 
some of our treaties with the Indians, the same language is used. 
But in all these cases the undersigned have reasons to believe the 
framers of these treaties neither examined the subject, nor is it 
probable that they even thought of any distinction between the 
relation which the federal government holds to slavery, and that 
maintained by the government of the slave States. And iX is 
proper to remark, that, in making treaties Avith foreign nations, 
the government is controlled solely by the law of nations. Un- 
der these circumstances, the undersigned feel that the language 
employed in those treaties can form no precedent for the discharge 
of our legislative duties when this precise question is presented 
for our decision. 

It is also the case that in some instances the courts in free 
states have carelessly applied to slaves, the term "property." But 
the committee have searched in vain for a case in which slaves are 
decided to be property binder the federal constitution. It is be- 
lieved that no court, either of the free or the slave States, or of 
the United States, have made decisions to that extent, while it has 
already been shown that the Supreme Court of the United States, 
have decided that they are not property. Nor are they regarded 
merely as property in any of the slave States. In every State of 
the Union they are punishable for crimes under the State laws, 
such is not the case with any species of property. Murder may 
be committed upon slaves in any State, iind the murderer hanged 



Rep. No. 187. II 

therefor. But no such punishment applies to the killing of any 
other species of property. Slaves in such States are, however, for 
certain purposes under their laws, regarded as a '■'■peculiar kind of 
property. ^^ But the laws of those State* are /oca^, and have no 
bearing upon the relation which the federal government holds to 
the institution. Slavery is the creature of municipal law, and can 
extend no farther than such municipal enactment has force. _ It is, 
therefore, strictly confined to the jurisdiction creating it. So 
strictly is this rule of law observed by courts of justice, that if a 
slave escape from his master on to free soil, but, for a moment, he 
becomes free forever. Thus, in the case of Forbes vs Cochran, 
et al, (vide 2, Barnwell & Cresswell, 448.) Bayley, justice, re- 
marked, " slavery is a local law, and, therefore, if a man wish to 
preserve his slaves, let him attach them to him by affection, or 
make fast the bars of their prison, or rivet^well" their chains, for 
the instant they get beyond the limits where slavery is recognized 
by the local laws, they have broken their chains, they have es- 
caped from their prison, they are free." The same principles were 
decided in the case of Somerset, (see 20 vol. State trials,) and are 
recognized by the courts of the United States, and by those of 
nearly all of the several states of this Union. See 2 Marshall, 
Rep. 467; 1st Leigh, Rep. 172; Gilmer's, Rep. 143; 2 Mum- 
ford, 393 ; 5th Read, Rep. 126 ; Walker's Mississippi Reps. 36. 
In the latter case, the court say, '' slavery is condemned by reason 
and the laws of nature. It exists and can exist only through mu- 
nicipal regulations.''"' Property may be taken by the owner from 
one State to another, or from one nation to another, but, if a man 
voluntarily take his slave, or send him to a free State, the moment 
he enters such State, he becomes a freeman. From that moment 
the masters' power over him ceases, and he can no more be enslaved. 

But the undersigned feel that it is the duty of statesmen to 
meet out justice with an even hand to all the people of our govern- 
ment. In order to do this, long existing usages and v/ell es- 
tablished precedents must be followed. Instability ii le.oislation 
creates distrust, and destroys confidence in the legi;^' at.ve b?dy. 
The undersigned, have, therefore, looked into the forv.^:- r.rhv-";i'je 
of Congress on this subject, and they find but one principle has 
ever been acknowledged by Congress, in regard to the question 
under consideration. The legislative branch of government has 
never regarded slaves as property, nor has any claim for the pay- 
ment of slaves, either lost or killed in the public service, been paid 
by law of Congress, except, perhaps, in one or two instances. 
The only law which the undersigned have ^ound is the case of 
Depeyster, which passed the House of Repr sentatives, without 
discussion or examination, at the 1st session, -Sth Congress, (see 
laws of that session.) , 

It is within the personal knowledge of at least one of the under- 
signed, that the bill in that case was regarded by seme of the older 
members of the house as unsustained by principle, au'! opposed to the 
entire practice of the government, since we have been a nation. But 
it passed while such members were absent from the house, or at least 



12 Rep. No 187 

without their attention being called to it, and one of those days in 
which no discussion is permitted. As it passed without discussion 
or examination, it can, with no propriety, be said to form a pre- 
cedent for other cases ; particularly, when the House of Repre- 
sentatives has frequently passed upon this question upon full ex- 
amination, and have as uniformly refused to pay for the loss of 
persons held as slaves. The case of Francis Larche is one fa- 
miliar to most of those who have serve\l long in Congress. The 
petitioner in that case owned a slave, horse, and cart, all of which 
were in his service near New Orleans, in 1814. The day of the 
battle near that city, the slave, horse, and cart, were impressed 
into the public service, by order of the commanding officer. 
During the battle, the negro and horse were killed, and the cart 
destroyed by the cannon shot of the enemy. The owner subse- 
quently applied to Congress for compensation. The case was re- 
ferred to the committee on claims, who reported in favor of paying 
for the horse and cart, but against paying for the slave. See 
House Reports, 1 sess. 21 Congress, vol. 3, No. 401. This is, per- 
haps, the strongest possible case. The owner had not hired the 
slave to government, but the slave had been impressed against the 
will of the owner. If any case could be attended with circum- 
stances which demanded pay from the government for the loss of 
a slave, this was surely such a case; yet the committee, composed 
of men from the southern States, as well as from the northern 
States, appear to have come to the unanimous conclusion, that the 
allowance of this claim would be an overturning of the established 
usages of the government. They say, in their leport, that they 
had caused examination to be made at the Treasury Department, 
to see if slaves who had been killed in public service during the 
revolutionary war had been paid for. And they learned that no 
such instance could be found. They also cite a number of cases 
where claims were made for slaves killed, and those who died in 
the public service during the war of 1812, all of which were rejected. 
On the 9th April, 1816, Congress passed an act entitled "an act 
to authorize the payment for property lost or captured, or destroy- 
ed by the enemy while in the military service of the United States." 
A motion was made to amend the bill so as to include slaves lost 
or killed in the public service; but the amendment was rejected. 
Another attempt was made to amend a similar bill on the 24th 
January, 1825, but the amendment was again rejected. These ex- 
press decisions of the House, and the number of reports against 
claims for payment of slaves lost in the public service, would seem 
to have permanently established the principles which should govern 
us in the present case. But several cases of this description have, 
within the last five or six years, been reported upon favorably, and 
efforts have been made to change the established usage of the gov- 
ernment in cases of this description. At the 2d session of the 27th 
Congress the Committee on Territories reported a bill for the relief 
of the people of West Florida, by which provisions were made for 
the payment of slaves taken from their owners by the array under 
General Jackson, in 1814. This bill was opposed on the ground 



Rep. No. 187. 13 

that slaves were persons^ and not property, and when the final vote 
was taken by yeas and nays, the claim was rejected. But enumer- 
ation of particular cases can add no strength to the position assum- 
ed by the undersigned. From the first session of the first Congress 
down to the present day, no case can be found in which the legisla- 
tive branch of government has, upon examination or discussion of 
this subject, admitted slaves to be property. Many claims of this 
character have been rejected. The action of the House has at all 
times been opposed to allowing claims of this description ; having, 
for more than half a century, regarded slaves as persons and not as 
property. The undersigned can now see no good reason for re- 
versing the principles on which Congress has so long acted, and 
overturn the plainly expressed intention of those who framed our 
federal compact. 

But the undersigned are deeply impressed with the important 
principles involved in this case, which yet remain to be examined. 
The time seems rapidly approaching when the relation which the 
federal government holds to the institution of slavery, under the 
constitution, must be examined and determined. The undersigned 
are conscious that they cannot do justice to their own views of this 
case without defining, with some degree of precision, the constitu- 
tional powers of the federal government in respect to slavery. 
They find that, prior to the adoption of the federal constitution, 
each of the several States entering into the compact had full, per- 
fect, and absolute control over the institution of slavery within its 
own boundary, and could continue or abolish it at the pleasure of 
its people. By adopting the constitution none of those powers 
were delegated to the federal government, but each of the several 
States retained to itself the same powers in relation to slavery 
which it had previously possessed. A portion of the States, in 
pursuance of their most obvious constitutional rights, have abolished 
that institution. Other States, by virtue of the same right, still 
continue to sustain it. Nor has Congress the constitutional power 
to interfere with the exercise of those rights. The several States, 
having retained to themselves all powers not delegated to the 
federal government, each may now sustain slavery, or it may en- 
tirely separate itself from all participation in the support of that 
institution. The rights of the several States on this subject are 
equal and perfectly reciprocal. The federal government, in the 
opinion of the undersigned, possesses no power to involve the slave 
States in the abolition of their " peculiar institution." Nor has it 
the right to involve the free States in its support. It is strictly a 
State institution, over which Congress has no control, except to 
legislate for the recapture of fugitive slaves, as provided for in the 
last clause, 2d section of the 4th article of the constitution. With 
this one exception, the undersigned entertain the opinion that Con- 
gress possesses no jurisdiction over that subject, and is totally des- 
titute of all power to legislate, either to uphold or destroy it. The 
federal government belongs equally to all the States, and when it 
puts forth its powers it must act for all the people of all the States. 
It follows, as a corollary, that it cannot act where slavery is con- 



14 Rep. No. 187. 

cerned. If it acts against slavery, it must encroach upon the rights 
of the slave States; if it act for the support of that institution, it 
will equally encroach upon the rights of the free States; for they 
hold their right to be free from what they regard the guilt of 
slavery to be as supreme as that of the people of the south to be 
free from its abolition. The framers of the constitution, as we 
learn from the discussions at the time of its adoption, intended to 
leave the institution of slavery entirely with the States. It is in 
vain that we look to that instrument for any powers conferred on 
Concrress over slavery. These opinions are believed to be fully 
born^e out by the decisions of the Supreme Court of the United 
States.— See Groves vs. Slaughter, 15 Peters' Rep. p. 449; also 
case of Priggs vs. the Commonwealth of Pennsylvania, 16 Peters' 
Reports. 

This doctrine, so prominent in the discussions at the time of 
adopting the constitution, and which it is believed has not only 
been confirmed by judicial decisions of the courts of the United 
States, but by those of the different States, has been frequently re- 
cognised by the House of Representatives. By an almost unani- 
mous vote in December, 1838, it was resolved that this government 
is a government of limited powers; that^ by the constitution of the 
United States, it has no power whatever over the institution of 
slavery in the several States of this Union.^'' It would be useless 
to quote other resolutions or acts of this House to prove a propo- 
sition so well known and understood by all intelligent men. So 
far has this doctrine been carried that, for many years, it was re- 
garded as a useless occupation of time, even to receive petitions 
asking us to act in any way touching the institution of slavery, 
even in the District of Columbia, where it exists' by act of Congress, 
and such petitions, by a standing rule of the House, were laid on 
the table without being read or referred. 

It seemed to have been the unanimous opinion of statesmen, that 
Congress possessed no powers whatever in relation to slavery. A dis- 
tinguished Senator in speaking before that body on this subject, in 
1839, said, "according to the compromises of the constitution no 
power whatever was granted to the federal government in respect 
to domestic slavery, but that which relates to taxation, representa- 
tion, and the power to restore fugitive slaves; all other power," said 
he " in regard to the institution of slavery, was retained exclusively 
by' the States." This was spoken in the presence of that learned 
body, and no member, it is believed, either denied or doubted the 
doctrine advanced. 

The undersigned entertain the same sentiments. They feel that 
to legislate for the payment of slaves by this government, or to 
appropriate the funds of the nation, drawn in part from the free- 
men of the north, for such a purpose, would be to involve the 
people of the free States in the support of an institution which 
they have discarded, which they regard as wrong, to which they 
are, morally and religiously opposed, and from the evils and bur- 
dens of which they are most obviously exempted by the constitu- 
tional compact. 



Rep. No. 187. 15 

The undersigned are not unconscious that the last clause of the 
second section of the fourth article of the constitution has been 
referred to, to show that the constitution has involved the free 
States in the support of slavery. This, however, if true, must be 
limited to the terms to which that clause extends. It has no other 
reference to slavery than regards fugitive slaves, and cannot prop- 
erly be construed as extending further. But we find, by the his- 
tory of its adoption, that the framers were careful not to involve 
the people of the free States in the arrest or return of fugitive 
slaves. The covenant on the part of the free States is, that they 
will pass no law or regulations, nor do any acts, to relieve such fu- 
gitive from the service of his master. When that clause of the 
constitution was before the convention, a member from South Ca- 
rolina moved to amend it so as to make it the duty of the people of 
the free States to arrest and imprison fugitive slaves, in the same 
manner as they were bound to arrest and imprison fugitives from 
justice. But Mr. Wilson, of Pennsylvania, objected that such 
provision would involve the people of the free States in the ex- 
pense of arresting and imprisoning slaves, and the amendment was 
rejected. 

This is conclusive to show that no acts were to be done by the 
people of the free States in favor of fugitive slaves. Indeed, this 
very stipulation is to abstain from action. So clearly is that inten- 
tion expressed on the face of the constitution, that the Supreme 
Court of the United States, in the case of Prigg vs. Commonwealth 
of Pennsylvania, declared the States incompetent to legislate on 
the subject, and that the last member of the section, which says 
"they shall be delivered up on claim of the party to whom such 
service or labor may be due," imposes upon the people of the free 
States no other obligation than peaceably and quietly to permit the 
holder of the slave to enter such State and pursue and take his 
slave without molestation or hindrance. To the extent, then, of 
abstaining from all participation in aiding the slave to escape from 
service, the people of the free States are bound to uphold that insti- 
tution, and no farther. The master cannot demand of them aid or 
assistance m retaking his slave. If the slave resist his master, there 
is no obligation upon the people of such free State to assist the 
master in overpowering the slave. So far from this, some of the 
State legislatures have, by statute law, rendered it penal for any 
citizen of such State (not being an officer of the United States) to 
render any assistance to the master in such case. Of the perfect 
constitutional power of the States to pass such laws, the under- 
signed entertain no doubts. And they are led to the- conclusion 
that this provision of the constitution gives no power, either ex- 
press or by implication, to Congress to legislate either for the ben- 
efit or the abolition of slavery, except for the arrest of such fugi- 
tives; and, on that point, the powers of Congress extend no farther 
than to attach penalties to any act of interference on the part of 
those who defend, protect, or secrete the fugitive from arrest. The 
undersigned, after the most careful examination of this case, and 



16 Rep. No. 187. 

of the important principles involved in its consideration, have been 
led to the conclusion — 

Firstly. — That, admitting the man Lewis to have been the prop- 
erty of the petitioner, in the ordinary acceptation of that terra, the 
circumstances of this case come within no established rule of com- 
pensation known in the practice of this government. 

Secondly .—Thdii Lewis was a prisoner of war, and could not 
properly have be.en surrendered by the military officer in command 
to any person claiming him as a slave. 

Thirdly. — That slaves, under the provisions of the federal con- 
stitution, are not regarded as property, and ought not to be paid 
for by the government as such. 

Fourthly. — That for Congress to allow compensation for the man 
Lewis, would be to reverse the entire system of legislation on the 
subject which controlled this body since the adoption of the con- 
stitution, and would bespeak an instability of purpose which must 
necessarily impair the confidence now reposed in us by our consti- 
tuents. 

Fifthly. — That, by the constitution of the United States, the fed- 
eral government are not authorized to legislate upon the subject of 
slavery, or in any manner to involve the people of the free States 
in the payment for slaves. 

The undersigned, therefore, recommend to the consideration of 
the House the following resolution: 

Resolved, That the petitioner is not entitled to relief. 

JOHN DICKEY. 
JAMES WILSON. 
DAVID FISHER. 
DUDLEY MARVIN. 






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